Until the creation of the Federal Court of Australia and the Family Court in 1976, apart from the High Court itself, there were few federal judges. The creation of those courts and, more recently, the Federal Magistracy, has resulted in a large increase in the number of federal judges, but even today the State governments of New South Wales, Victoria, and Queensland, appoint more judicial officers than the federal government.
The state of New South Wales appoints about one quarter of Australia's judicial officers. The largest single judicial group in the nation is the New South Wales magistracy. The Federal Court competes with State Supreme Courts for recruitment of judges. Furthermore, judges sometimes move from a State Supreme Court to the Federal Court, and vice-versa. A number of the present members of the Federal Court were recruited from State Supreme Courts.
There are seven members of the High Court and five of us were previously members of State Supreme Courts. Like the first Chief Justice of the High Court, I was formerly a State Chief Justice. Some States have legislation which provides for the appointment as acting judges of judges from other States. When I was Chief Justice of New South Wales, there was a fairly regular interchange between the New South Wales Supreme Court and the Supreme Court of the Northern Territory, which was pleased to have the assistance of New South Wales judges to assist in that court's appellate work. In one case, the Court of Appeal of New South Wales was comprised of the Chief Justice of Western Australia, and Judges of Appeal from Victoria and Queensland. This cross-fertilisation is a good thing. Fifteen years ago it was virtually unheard of, although Territory courts often drew their members from State courts. It should be encouraged and facilitated. I would like to see more of it.
The recently established National Judicial College, which is headed by Chief Justice John Doyle of South Australia, is intended to cater for both Federal and State judicial officers.
At the end of the 19th century, there were few models of federalism available. Switzerland was quickly rejected and that left only the United States and Canada. Like Australia, those countries had a common law tradition. Their legal and judicial systems were inherited from the United Kingdom. One of the interesting features of the history of the federal movement is the importance which the framers of the Constitution attached to the fact that, in most respects, they had in mind following the United States, rather than the Canadian, model of federalism. This was seen as an important inducement to the colonies to join in the new federal union. The Canadian model centralized power to an extent greater than the United States model. At the time, the central government in Canada had a veto over provincial legislation. In the distribution of legislative power, the Provinces were given power with respect to specified topics, and the residual power remained with the Federal Parliament. In the United States, as in Australia, it was the other way around. The Federal government in Canada appoints the judges of the superior courts of the Provinces.
In Australia, until 1976, most federal jurisdiction was exercised by State courts. From the outset, in the United States there was a strong and separate federal judiciary. Federal judges in the United States were, and still are, appointed for life. In many States, the judges are elected. The legal system of the United States is not integrated, as is the Australian legal system. The Supreme Court of the United States does not have a general jurisdiction to hear appeals from State Supreme Courts, and there is no common law of the United States. There is, on the other hand, a common law of Australia. This is a consequence of the role of the High Court as the ultimate court of appeal with a general jurisdiction to hear appeals from decisions both of federal courts and of State Supreme Courts.
Over the twentieth century, some have advanced proposals for integration of the Australian court system, to a greater or lesser degree. Some of those proposals were a response to the creation of the Family Court and the Federal Court, and to apprehensions about jurisdictional problems that might arise, especially because of a tendency of some Federal Governments to confer upon federal courts exclusive jurisdiction in relation to issues arising under Federal law. One proposal, for example, involved the creation of a national intermediate appellate court to hear appeals from the Federal Court, the Family Court, and State Supreme Courts, subject to a final appeal to the High Court. Since then a number of States have followed the lead of New South Wales in creating a permanent Court of Appeal within their own Supreme Court structures.
Whether the supposed jurisdictional problems anticipated at the time of the creation of the Federal Court were ever likely to be as widespread as was sometimes represented may be open to question. The Australian Law Journal of October 1982, referring to a proposal for integration of the national court system, records the Chairman of the Commonwealth Law Reform Commission, Justice Michael Kirby, as expressing misgivings about the proposal, and as saying that the number of instances where litigants had gone to the wrong court, or had not been able to find a remedy, was minute. That, I should say, accords with my own experience in practice as a barrister. Assertions of jurisdictional complexity are sometimes made for a polemical purpose, and some of them should be treated with caution. Such complexity as exists in Australia is as nothing compared to the United States.
In recent years, there has been increasing political interest in the appointment of judges. I have complained in the past that this has not been accompanied by a corresponding increase in interest in the subject of education and professional development of judges, and I will return to that.
Interest in the matter of appointment of judges may be accompanied by a corresponding reluctance on the part of governments, Federal or State, to hand over the power of making appointments. The New South Wales Government, for example, might not be enthusiastic about delivering to the Federal Government the power to appoint all judges or magistrates who administer the law of New South Wales. As a matter of history, one of the reasons for the establishment of the Federal Court was a desire on the part of the Federal Government to appoint the judges who interpret and apply Federal statutes. The corollary as to the appointment of judges who interpret and apply State laws is obvious. Governments also have different policies in relation to aspects of court administration, court funding, and terms and conditions of judicial office. For example, under the Constitution it is not possible for the Federal Government to appoint acting judges. On the other hand, some States, especially New South Wales, have made extensive use of acting judges. A term of service as an acting judge of the New South Wales State Supreme Court seems now to be a conventional method of easing Federal Court judges into retirement.
It seems inevitable that, if there were, by Constitutional amendment, either a complete or a partial integration of the Australian court system and judiciary, it would be necessary to establish a Commission to deal with appointment of judges. This is a not a new idea. It was proposed in 1935 by Sir Owen Dixon, and again in 1977 by Sir Garfield Barwick. An interesting question is whether it would be a practical political possibility. Consider, for example, the High Court. It would be one thing for a Federal Government to surrender, to a Federal Commission, the power to nominate members of the High Court. It would be another thing for the Federal Government to agree to a majority of the members of that Commission being appointed by State and Territory governments. Sir Garfield Barwick's proposal was separate from any suggestion for integration of the Australian judicature. He said that in the case of all governments, State or Federal, the power to advise the Executive Government on the suitability of persons for judicial appointment should be vested in a body consisting of judges, practising lawyers, and lay people "likely to be knowledgeable in the achievements of possible appointees". Whether his ideas as to the composition of such a Commission would be widely shared outside the legal profession may be a question.
Perhaps, the present system works reasonably well; at least well enough to discourage people from facing the formidable legal and political difficulties associated with constitutional change. One of the benefits of federalism is that it encourages a form of diversity, and even competition, which, properly managed and directed, is a source of vitality and strength. It is not obvious to me that it would be a good thing if all Australian judges and magistrates were appointed, and all Australian courts administered, from Canberra. As I explained earlier, there is already a substantial degree of commonality, and interchange, within the Australian judiciary. We are not nearly as diverse as our United State counterparts, but, unlike the Canadians, we are appointed by different governments, and governments of different political colours. That may be no bad thing.
I will conclude on a point I mentioned earlier. I hope, and expect, that a major force for unity within the Australian judiciary will be the National Judicial College. It has the strong support of the Council of Chief Justices. It is a national, not a federal, college. The Federal government and some State governments are behind it. At present, some others are not. I hope that will change. In advocating government support for a formal system of judicial training and continuing legal education, I have repeatedly stressed the close connection between judicial recruitment and judicial training. I understand why governments want to see greater diversity in the judiciary. But they cannot complain about the near monopoly enjoyed by a particular professional class if the members of that class enjoy a huge natural advantage because their experience equips them to be judges, and because governments provide no facilities to train others to be judges. So long as governments adhere to the old-fashioned idea that new judges are thrown in at the deep end, they cannot complain that judicial office is available only to experienced swimmers. Successive New South Wales governments have been leaders in the field of judicial education. The Judicial Commission of New South Wales, of which I was President for almost 10 years, does work that has gained it an international reputation. It supports the National Judicial College. There is enormous scope for development in the field of judicial education, and tackling that issue on a national basis seems to me to be the best way of promoting greater unity without sacrificing the advantages of diversity.
An edited version of the speech given to the Sydney Institute on June 9, 2004, on the national judiciary.